Cline v. City of Boulder

• Decision Date: 25 February 1975
• Docket Number: No. 74--134,74--134
• Citation: 35 Colo.App. 349,532 P.2d 770
• Parties: Kenneth E. CLINE and Jean F. Cline, Plaintiffs-Appellants, Cross-Appellees, v. CITY OF BOULDER, Colorado, a Colorado Municipal Corporation, Defendant-Appellee, Cross-Appellant. . III
• Court: Colorado Court of Appeals

Page 770

532 P.2d 770

35 Colo.App. 349

Kenneth E. CLINE and Jean F. Cline, Plaintiffs-Appellants Cross-Appellees, v. CITY OF BOULDER, Colorado, a Colorado Municipal Corporation Defendant-Appellee, Cross-Appellant.

No. 74--134.

Colorado Court of Appeals, Div. III.

Feb. 25, 1975.

Reynolds, Connell, Moran & Banman, John M. Banman, Boulder, for plaintiffs-appellants, cross appellees.

Walter L. Wagenhals, Boulder, for defendant-appellee, cross appellant.

PIERCE, Judge.

The Clines brought this suit seeking relief from a special assessment levied against their property by defendant City of Boulder. The improvements for which the assessment was levied included the widening and repaving of a street upon which the Clines' property abutted, the installation of curb, gutter and sidewalk, and the installation of a storm drainage system. Total cost of the improvements was over $344,000, $31,000 of which was determined by the City Council to be of special benefit to the abutting landowners. The assessment was apportioned among the landowners by use of the 'front-foot, square-foot' method, resulting in an assessment of approximately $13,000 against the Clines' property, which consisted of approximately $200,000 square feet and 660 linear feet of frontage.

At the hearing conducted prior to passage of the assessment ordinance, the Clines maintained that the improvements did not benefit their property, and that, in fact, the widening of the street with the concomitant increase in vehicular traffic would detrimentally affect the market value of their property. In spite of the Clines' protest, the Boulder City Council enacted the assessment ordinance, wherein the Council found that '(t)he properties appearing on the assessment schedule have specially benefited by the project at least to the extent of the assessments. . . . The assessment is therefore approved.'

The Clines then commenced this action in district court, seeking an injunction against the assessment and a declaration that the assessment ordinance was void because it constituted a taking of the Clines' property without due process of law and denied the Clines equal protection of the law, and because the City Council exceeded its jurisdiction and abused its discretion in levying the assessment.

The district court concluded that the improvements afforded a benefit to the Clines, but held that the City Council had insufficient evidence to reach the conclusion that the special benefits to the Clines' property equalled or exceeded the amount of the assessment. Without explicitly stating whether it was affirming or reversing the Council's action, the court remanded the matter to the Council for further hearings to determine the amount of benefit accruing to the Clines' property.

Our supreme court, in Orchard Court Development Co. v. City of Boulder, Colo., 513 P.2d 199, held that C.R.C.P. 106(a)(4) was a proper vehicle for judicial review of special assessments levied under Boulder's homerule powers. Although, as in Orchard Court, the complaint in this case suggests that plaintiffs sought declaratory relief as well as injunctive relief, the trial court's order and both parties' briefs before this court have followed the Orchard Court holding by proceeding under C.R.C.P. 106 rather than C.R.C.P. 57, and therefore we conclude that C.R.C.P. 106(a)(4) governs this action.

The City asserts that a motion for new trial is necessary to secure appellate review of a district court's judgment in a proceeding under C.R.C.P. 106, and that since only the City filed a motion for new trial, the Clines cannot be considered appellants in this case. We disagree. A motion for new trial is not required where, as in proceedings under C.R.C.P. 106, the hearing in the district court did not involve controverted issues of fact. C.R.C.P. 59(h); Colorado Civil Rights Commission v. Colorado, 30 Colo.App. 10, 488 P.2d 83. Both parties timely filed the requisite notice of appeal.

Citing Safeway Stores, Inc. v. City of Trinidad, 31 Colo.App. 75, 497 P.2d 1277, the City suggests that, because the district court's order remanding the case to the City Council for further proceedings did not constitute a final judgment, this court may be without jurisdiction to entertain this appeal.

In the Safeway Stores case, the district court neither affirmed nor reversed the decision of the City Council, but remanded for the Council to make findings required by state statute, which findings had not been previously made by the Council. This court held that, under those circumstances, a final judgment was lacking. In the case at bar, however, the City Council made all the required findings, and we conclude therefore that this court has jurisdiction to consider this appeal.

Furthermore, under these circumstances, we concur with the Clines' contention that district court review in a C.R.C.P. 106 proceeding is limited to the record, and the district court on its own motion may not order a remand to supplement the record where, as here, evidence had been presented on all issues necessary for a determination of the validity of the assessment and the record is complete. Board v. Handley, 105 Colo. 180, 95 P.2d 823; See Johnston v. City Council of Greenwood Village, 177 Colo. 223, 493 P.2d 651. Thus, we construe the district court's order to be a final judgment, reversing the City Council's decision on the ground that the Council's finding of $13,000 special benefits to the Clines' property was unsupported by sufficient evidence and therefore was an...